Staff Specialist overtime and onerous hours

18-Sep-2020

 

Members will recall that over April and May we were in negotiations with the Ministry of Health regarding appropriate remuneration where a staff specialist agrees to be rostered for additional shifts or hours beyond 40 ordinary hours per week during the pandemic.

Unfortunately, the negotiations did not result in an agreed outcome because the Ministry would not agree with two of our proposals:

  • That overtime should be paid on the “rolled up” salary of the base award rate plus the special allowance and the allowance in lieu of private practice, and
  • That the shift loading for members working between midnight and 7am should either be 50% or 75% (like in Victoria) and not the 25% they proposed.

What can you do if you are a staff specialist and you are asked or required to work additional hours which may be onerous hours?

Under the Staff Specialists (State) Award 2019 the Normal Duties for a staff specialist will be worked for not less than 40 hours per week; or 10 sessions per week, over five days per week.

Your Normal Duties hours may be averaged over four days per week; or a longer roster period as agreed between you and the Employer. This will be specified in your performance agreement.

Normal Duties will be worked within the span of hours of 7 am to 6 pm Monday to Friday except for staff specialists in Emergency Medicine who are covered by Award shift provisions.

However, Clause 4 A (e) of the Award means that you will be available for reasonable on call and recall duties outside of Normal Duties.

What is reasonable?

This is an adjective much resorted to in law and has come to mean something approaching moderate or average. The test of what is reasonable is ultimately an objective test and not simply a matter of what you may personally think is reasonable. It requires an assessment of the circumstances and facts of each issue.

What if you are asked to work unreasonable on call/recall?

For that we need to go to Clause 6 of the Staff Specialists Determination 2015 which provides the framework for remedying problems with excessive abnormal work hours and places the obligation on the employer to address the problem.

Clause 6 (c) relevantly reads “the Public Health Organisation, in conjunction with the affected Staff Specialist, will review the work pattern of the Staff Specialist to reduce the number of hours”.

This should also be read in conjunction with the Work Health and Safety Act 2011 (NSW). The employer must provide a healthy and safe work environment, so far as is reasonably practicable. This includes obligations to ensure you are not exposed to potential health and safety risks, such as excessive fatigue and unsafe working hours.

You also have a right to refuse to carry out work if you have a reasonable concern the work would expose you to a serious risk. But you need to have a reasonable concern and there needs to be a serious risk. If the additional work you are doing is unreasonable and is exposing you to a serious risk then you may be able to refuse to do the work.

Clause 6 also says, “reduction may be achieved by means of time in lieu or other variations in Normal Duties as agreed between the Staff Specialist and the Public Health Organisation.”

Remember the obligation is on the employer to “reduce the number of hours”.

Notwithstanding the positive emphasis on reducing the number of hours worked if in “exceptional circumstances” the hours cannot be reduced then Clause 6 also deals with additional abnormal hours payment. See sub clauses (e) to (h).

Contact us at allocation@asmof.org.au if you have any concerns about onerous and unsafe working hours.